Probate: The Whys and Wherefores
What is Probate?
“Probate” is the official recognition of the validity of a Will. Probate is granted by the Supreme Court to an executor named in a Will and provides conclusive evidence of the Executor’s appointment and the terms of the Will. The Supreme Court (usually through its Officer, the Registrar of Probates) issues a certificate under the courts seal certifying that on a particular date Probate of the original of the attached copy Will of the named person who died on a specified date was granted to a named person. The certificate is the Probate document.
Why is Probate required?
Because organizations administering assets (e.g. Banks, Share Registries and the Land Titles Office) will not allow just anyone to deal with the Deceased’s Persons assets. The only person they will allow to deal with the assets is the Executor named in the Probate.
Section 31 of the Administration and Probate Act gives statutory protection to a person who makes a transaction or disposition relying in good faith on the Probate. There is absolutely no incentive to an Executor for allowing a person to deal with the deceased person’s assets without Probate.
When is Probate required?
The answer generally is rather simplistic. If you cannot deal with an asset without Probate then you need Probate. If you can deal with the asset without Probate then you do not need Probate.
However, there may be cases where assets can be dealt with without Probate but Probate should still be obtained e.g. where the Administrator of the asset requires the statutory protection, where the Executor wishes to have the Court’s authority, where a Part 1V Application (a claim by a person seeking a share or greater share in the estate) is to be made and cannot be made unless and until Probate is granted.
Jointly owned property and property held on Trust.
Probate is not required in these cases because in the case of jointly owned assets, they pass on the death of an owner. It is the death of an owner rather than his or her Will which entitles the survivor. Assets held in Trust (e.g. Family Trusts and Superannuation) are legally owned by the Trustee not by the Deceased person. The Trustee can deal with the assets without Probate because the Trustee is the legal owner.
How do you apply for Probate?
The normal method is by application to the Registrar of Probates. The application is supported by Affidavits verifying that the Will was the last Will, that it is executed in conformity with the Wills Act, giving details of the Deceased’s matrimonial history, the address of the Testator and the Executor, the identity and addresses of the witnesses to the Will and detailing the assets of the Estate and whether they are inside or outside Victoria.
On rare occasions the Application is made in person to the Supreme Court.
What happens if there is no Will or a Will with no executor.
In these cases it is possible to obtain a Grant of Letters of Administration. Letters of Administration is the name given to what would have been a Grant of Probate if there had been a Will or an Executor.
What happens if there is a Will but the executors do not apply for Probate.
In these circumstances the Supreme Court has the power to Summons the Executor to prove the Will (obtain Probate) or renounce Probate.
What happens if there is a Will but it is not certain whether or not the testator has died?
There is a common law inference that, after an absence of seven years, a person may be presumed dead where all the circumstances tend to show that the person’s absence and silence are due to death and not any other cause. If the Court is satisfied of death whether by direct evidence or by presumption then Probate of the persons Will may be granted. However, the estate cannot be distributed without a Court order. The Court can revoke the Probate if it subsequently appears that the person was alive.
What happens if an Executor does not want to take out Probate?
In this case the Executor can renounce Probate. This would then leave any named substitute Executor to obtain Probate, or if there is no substitute Executor, a Beneficiary could apply for Letters of Administration with the Will annexed.
What if an Executor is seeking probate but you believe that the Will was forged or that the Testator lacked capacity or was subject to undue influence or that there is a later Will.
In this case, it is possible to lodge a Caveat against the granting of Probate. The Caveat expires after six months but a new Caveat may then be lodged.
Once an application for Probate is made notice is given to the Caveator who then has 30 days to file the reasons why the Probate cannot be granted. The question of the Will’s validity will then be referred to a Court hearing.
Probate Duty
Probate Duty was a death duty which was abolished many tears ago. It was common to use the expression “Probate” as meaning Probate Duty e.g. “will there be much Probate payable”.
Executors Commission
An Executor is entitled to receive a commission for his pains and troubles in carrying out the provision of the Will if
– the Beneficiaries agree; or
– the Executor applies to the Court and is awarded commission.
What is the difference between an Executor and a Trustee.
The difference is a technical one only. Until the Executor has got in all of the Estate and paid the bills he is an Executor. After that time he is holding the assets on trust for beneficiaries and is a Trustee.
